Applicable starting with 15th OF FEBRUARY 2016
GENERAL CONDITIONS FOR SECURITIES
-MOVABLE SECURITIES-
This document represents the General Conditions for Securities of Banca Comercială Română S.A., which
are attached to and forms an integral part of the Mortgage Agreement (as defined below) concluded between,
inter alia, the Bank and the Guarantor (as defined below), unless the Bank and the Guarantor agree
otherwise.
CHAPTER 1 – GENERAL PROVISIONS
1.
DEFINITIONS AND INTERPRETATION
1.1
Terms defined in the General Conditions for Credit Facilities
Whenever used in these GCS, unless the context requires otherwise or assigns another meaning to such term,
the terms defined in the General Conditions for Credit Facilities shall have the same meaning in these GCS.
1.2
Definitions of certain terms
In the Mortgage Agreement, unless the Bank and the Guarantor expressly agree otherwise, the following
capitalised terms shall have the meaning assigned below:
Mortgaged Assets shall have the meaning assigned under the relevant Mortgage Agreement.
Shares shall mean any and all current and future shares issued by the relevant company (and any rights in
connection thereto), held or to be held in the future by the Guarantor, including, but not limited to: (a) shares
together with all rights and related interests in the relevant company, held by the Guarantor on the execution
date of the Mortgage Agreement, as identified in the Mortgage Agreement; and (b) any other shares and
related rights in the relevant company (or any other successor entity) issued to, or to the benefit of, or
otherwise acquired by the Guarantor after the execution date of the Mortgage Agreement, regardless of the
grounds for such issuance or acquisition (and automatically mortgaged under the Mortgage Agreement on
the issuance date thereof, in accordance with Article 2392 of the Romanian Civil Code).
Electronic Archive shall mean the Electronic Archive of Movable Security Interests, as regulated according
to the provisions of Article 2413 of the Romanian Civil Code.
Insurance shall mean any and all rights of the Guarantor arising from or in connection with the insurance
agreements, insurance policies, insurance certificates, cover notes and/or any other documents ascertaining
an insurance or coinsurance agreement, as described under the relevant Mortgage Agreement, as updated
from time to time according to Clause 1.1(f)(i) of Chapter 4 of these GCS, and all replacements and renewals
thereof, including any insurance indemnities, benefits and proceeds arising therefrom and any claims
whatsoever and return of premiums.
Tangible Assets shall mean the movable tangible assets held by the Guarantor, as described under the
relevant Mortgage Agreement.
Discounted Certificates of Deposit/ Government Bonds shall mean the discounted certificates of deposit,
held by the Guarantor under the discounted certificates of deposit / Government bonds arrangement(s)
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registered in the Government bonds account opened in the name of Guarantor, as described under the
relevant Mortgage Agreement.
Password-Protected Bearer Certificates of Deposit shall mean the password-protected bearer certificates
of deposit, as described under the relevant Mortgage Agreement.
GCS shall mean these General Conditions for Securities, as further amended or supplemented.
Romanian Civil Code shall mean the Romanian Civil Code as republished in Official Journal of Romania
No. 505 of 15 July 2011, approved by Law No. 287 of 17 July 2009 on the Civil Code and by Law No. 71 of
3 June 2011 on implementing the Civil Code, as amended from time to time.
Romanian Civil Procedure Code shall mean the Romanian Civil Procedure Code, as republished in
Official Journal of Romania No. 545 of 3 August 2012, approved by Law No. 134 of 1 July 2010 on the
Civil Procedure Code and by Law No. 76 of 24 May 2012 on implementing the Romanian Civil Procedure
Code, as amended from time to time.
Mortgage Agreement shall mean a Security Agreement entered into by the Guarantor and the Bank and
setting up or intending to set up a Movable Mortgage for securing Borrower’s and, as the case may be,
Guarantor’s obligations under any Financing Document.
Bank Accounts shall mean the bank accounts as described under the relevant Mortgage Agreement, together
with all amounts from time to time credited or standing to the credit of all or any of the Bank Accounts and
all interest rates from time to time accruing and due in relation thereto.
Receivables shall mean any and all accounting debts, receivables and other claims whatsoever held by
Guarantor against each debtor identified or described under the relevant Mortgage Agreement (each a
“Mortgagor”), as described under the relevant Mortgage Agreement, as well as any receivables arising out
of any renewals, replacements or amendments to the agreements giving rise to such receivables, together
with the accessories to said receivables. For framework agreements, as described under the relevant
Mortgage Agreement, the term “Receivables” shall mean any and all accounting debts, receivables and other
claims whatsoever held by Guarantor against each Mortgagor identified or described under the relevant
Mortgage Agreement, arising out of the orders, requests, agreements, subcontracts, invoices or any other
documents currently concluded or to be concluded in the future based upon the framework agreements
provided under the relevant Mortgage Agreement, as such framework agreements may be renewed, replaced
or amended, together with the accessories to such receivables.
Debtor shall mean the Borrower and/or Guarantor and/or any Other Signatory.
Collateral Deposit shall mean the collateral deposit opened with the Bank, as described under the relevant
Mortgage Agreement, together with all the amounts from time to time credited or standing to the credit of the
Collateral Deposit and any interest or other amounts from time to time accruing and due with respect to such
amounts.
Intellectual Property Rights shall mean the intellectual property rights, as described under the relevant
Mortgage Agreement. For the avoidance of any doubt, Intellectual Property shall also include Trademarks.
Goodwill shall mean the movable assets which are or will be part of the goodwill/universality of movable
assets assigned for the performance of Guarantor’s business undertaking, as described in the relevant
Mortgage Agreement.
Movable Mortgage shall mean the movable mortgage right as regulated under the Romanian Civil Code.
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Trademarks shall mean the trademarks as described under the relevant Mortgage Agreement, with respect
to which, as at the date of the Mortgage Agreement, the Guarantor is registered as owner or applied for the
registration of the ownership right.
Secured Obligations shall mean all current and future liabilities and debts (whether current or contingent,
and no matter if owed jointly or severally, as a senior debtor or as a guarantor or in any other capacity and no
matter if they were initially undertaken by the Borrower or the Guarantor, as the case may be, or by another
person under the Financing Documents) owed by the Borrower and, as the case may be, the Guarantor, to the
Bank under any and all Financing Documents, including, without limitation, any and all amounts of money
representing principal plus related interest (including delay or default interest, as the case may be) and other
costs and fees, including any expenses whatsoever related to the recovery of all outstanding amounts and
court costs, as well as enforcement expenses, costs, charges and expenditures incurred by the Bank upon the
protection, registration, preservation and/or enforcement of any of the Bank’s rights in its capacity as secured
creditor under the Financing Documents or under any other documents providing for or guaranteeing any
such debts. The Secured Obligations include all the aforementioned obligations and debts arising from the
Financing Documents, as further amended and supplemented, including all the addenda which may be
executed in the future to the Financing Documents (irrespective of the form which is used to reflect them,
including, without limitation, the amendment/extension of the validity or the due date of the loan, change of
interest rate and/or fees, changes of the loan purpose or manner in which the loan is used, novations, changes
of obligations).
Stocks (in Romanian, parti sociale) means any and all existing and future stocks issued by the relevant
company (and any rights in connection thereto), held or to be held in the future by Guarantor, including, but
not limited to: (a) stocks together with all rights and related interests in the relevant company, held by the
Guarantor on the execution date of the Mortgage Agreement, as identified in the Mortgage Agreement; and
(b) any other shares and related rights in the relevant company (or any other successor entity) issued to, or to
the benefit of, or otherwise acquired by the Guarantor after the execution date of the Mortgage Agreement,
regardless of the grounds for such issuance or acquisition (and automatically mortgaged under the Mortgage
Agreement on the issuance date thereof, in accordance with Article 2392 of the Romanian Civil Code).
Security Period means the period commencing on the Mortgage Agreement date until all the Secured
Obligations have been fully and permanently satisfied.
Products means the proceeds (in Romanian, fructele şi productele) of the Mortgaged Assets, including,
without limitation, any asset received by the Guarantor further to an act of administration or disposal for any
of the Mortgaged Assets, as well as any assets replacing it or to which its value is transferred, according to
Articles 547 to 550 and 2392 of the Romanian Civil Code.
Mortgaged Property means the Mortgaged Assets and the Products.
1.3
Interpretation
(i)
(a) Chapter 1 (General Provisions) of these GCS contains general rules applicable to all the types of Security
Agreements and, depending on the assets which are included in the Mortgaged Property, the other
chapters hereof, containing special provisions, will be applicable in full or in part.
(b)
In these GCS, any reference to:
(i)
a person shall be construed as including such person’s permitted successors and
assigns;
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2.
(ii)
an agreement or a document shall be construed as a reference to such agreement or
document as amended, reiterated, supplemented, replaced or novated; and
(iii)
a legislative act or a particular provision or article of a legislative act shall be
construed as a reference to such legislative act, provision or article, as such may be
amended, republished or replaced at any time.
REPRESENTATIONS AND WARRANTIES
The Guarantor gives the representations provided in this Section 2 (REPRESENTATIONS AND
WARRANTIES) to the Bank and acknowledges that these representations were essential for the Bank
for the execution of the Mortgage Agreement:
(a)
Absolute, exclusive and perpetual right of ownership: The Guarantor is the absolute, exclusive,
perpetual, legal and full owner of the Mortgaged Property and has a valid title which is in full force
and effect on the Mortgaged Property, being liable for the existence of the Mortgaged Property and
related securities.
(b)
Mortgaged Property: The Mortgaged Property is freely conveyable in private dealings, it was not
assigned, mortgaged, pledged or otherwise transferred and there is no lien, privilege, easement (in
the form of a severance of the ownership right), arrangement, reserve, restriction in favour of third
parties; the Mortgaged Property is not subject to any undertaking that would deprive the Guarantor,
in full or in part, of the right to dispose of the Mortgaged Property or of any of its elements, to
exploit them and/or which would render impossible their capitalization by the Bank.
(c)
First rank: The Movable Mortgage established by the relevant Mortgage Agreement is a first rank
mortgage, except for the cases when the Bank approved the establishment of a lower-ranking
mortgage.
(d)
Valid mortgage: Under the Mortgage Agreement, a valid Mortgage Agreement on the Mortgaged
Property is duly established and recorded.
(e)
No dispute: there is no pending dispute or outstanding debt in relation to the Mortgaged Property
and no interim, insolvency or enforcement proceedings have been opened, initiated or pending
against it; in case of eviction (in full or in part) of all or a part of the Mortgaged Property, the
Guarantor undertakes to immediately notify the Bank on the occurrence of such cause of eviction
and to make the necessary diligences in order to preserve the valid ownership right and to defend the
Mortgaged Property and its elements against any total or partial eviction.
(f)
No infringement of the law: there is no continued infringement of any law or regulation by the
Guarantor which could reasonably have an adverse effect on the Mortgaged Property.
(g)
No adverse effect: there is no arrangement, facility, agreement, reservation, restriction, condition or
other matter which could have an adverse effect on the Mortgaged Property.
(h)
No limitation in the use of the Mortgaged Property: if applicable, the necessary utilities and
facilities in order to benefit and use any or all or a part of the Mortgaged Property are not subject to
any term or condition which would permit any person to have access to these facilities or utilities so
as to allow such person to cease or limit the utilisation thereof.
(i)
Firm obligations: Guarantor’s obligations under these GCS or the Mortgage Agreement are legal,
valid, legally binding and enforceable obligations.
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3.
SECURITY
3.1
Movable Security
In order to secure the fulfilment of the Secured Obligations, including, without limitation, the payment of
any and all amounts owed by any of the Debtors under the Financing Documents as they become due and
payable, the Guarantor, as owner of the Mortgaged Property, as it is on the Mortgage Agreement date and as
it can become from time to time, establishes under the Mortgage Agreement, in favour of the Bank, a
Movable Mortgage on the Mortgaged Property, in accordance with the provisions of the Mortgage
Agreement and these GCS and in compliance with the Romanian Civil Code.
By these GCS, the Parties acknowledge and agree that the Mortgage established under the Mortgage
Agreement on the Mortgaged Property (except for the Goodwill Mortgage) is a Movable Mortgage on
current and future assets, as such may be identified at any time, and it is not and shall not be construed as a
mortgage on a universality of assets for the purpose of Article 2368 of the Romanian Civil Code.
3.2
Disposal of the Mortgaged Property
Without prejudice to Clause 3.1 above, until the occurrence of an Event of Default, the Guarantor will
dispose of its property within the Mortgaged Property in the ordinary course of business but, at any rate, only
as permitted under the Financing Documents.
3.3
Extension of the Mortgage over the Products
The Movable Mortgage established under the Mortgage Agreement extends on all the Products of the
Mortgaged Property and on any other rights in relation to such assets obtained by the Guarantor (including,
without limitation, any and all assets resulting from any act of administration or act of disposal executed in
relation to the Mortgaged Property, as well as any assets replacing the Mortgaged Property or to which the
value of the Mortgaged Property or any part thereof is transferred), which are mortgaged in favour of the
Bank under the Mortgage established under the Mortgage Agreement.
3.4
Extension of the Mortgage over Insurance
(a)
According to Article 2330 of the Romanian Civil Code, the Mortgage established under the
Mortgage Agreement shall extend on any and all amounts owed to the Guarantor under any of the
Insurances concerning the Mortgage Property, as well as on any amounts of money that a third party
would owe to the Guarantor in relation to the loss of or damage to the Mortgaged Property or any
element of the Mortgaged Property and on any and all amounts paid or which could be paid to the
Guarantor by any central or local authority or any other person as compensation in an expropriation
for public utility purposes or for legal limitations of the ownership right on the Mortgaged Assets
(including, without limitation, nationalisation, takeover, requisition).
(b)
The Guarantor undertakes to:
i. conclude and maintain insurances with respect to the Mortgaged Property, in favour of the
Bank with independent insurers acceptable to the Bank, for the entire period until the
fulfilment of all obligations under the Financing Documents;
ii. the Insurances regarding the Mortgaged Property will cover the insured risks as requested by
the Bank, including the following minimum insured risks:
•
for Tangible Assets – (including equipment, utilities and current assets used as
Securities, deposit stocks) – natural catastrophes (earthquake, natural flooding,
landslip/land quakes), atmosphere phenomena (hurricane, storm, tornado and other
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associated atmosphere phenomena, snow avalanches) to which the following shall be
added: deterioration or loss caused by fire, theft, robbery, accidental damages to
machinery and equipment;
•
CASCO insurance – theft, accidents, fire or flooding.
iii. confirm to the Bank and submit the proof of the extension of validity for the Insurances at
least 5 (five) Business Days before the expiry date of such Insurances; and
iv. notify the Bank and the insurance company with respect to the occurrence of any insured
events, within the term and under the conditions provided by the insurance policies, but in
any event no later than 24 hours since their occurrence and to submit with the insurance
company all necessary documents in accordance with the terms and conditions provided by
the insurance conditions;
(c)
The Guarantor shall conclude the Insurances for a value not lower than the market value/base value
of the respective asset, provided that, if at any time and for any reason, (i) any insurance which is
required to be maintained under the Financing Documents shall not be in full force and effect, or (ii)
any amounts related to the insurance policies are due and payable by the Borrower or the Guarantor,
in either of such cases, the Bank shall have the right (but shall be under no obligation), as the case
may be, to conclude that insurance for, on behalf of and at the expense of the Guarantor, to perform
any extension of validity, renewal or replacement of the insurance (as the Bank may deem necessary,
the Bank being also entitled to select the insurance company with whom it will conclude such
insurances), to take any measures to mitigate the risks as the Bank shall deem appropriate or to pay
the respective amounts irrespective of any grace period granted by the Bank under the Financing
Documents. In such case, the Bank is authorized to debit Borrower’s or Guarantor’s account with the
equivalent value of the amounts paid by the Bank as per the above, as well as to make any payment,
transfer or currency exchange operation at the exchange rate used by the Bank, for the purpose of the
above.
(d)
In case of occurrence of the insured risks, the amounts owed as insurance indemnity or damages
(including in case of expropriation or other limitation of the ownership rights established through a
law or other public authority act) shall be transferred by the insurance company to a bank account
indicated by the Bank. To this end, the Bank is authorised to formulate and sign in the name and on
behalf of the insured person any requests or documents which may be necessary in relation with the
insurance company, to submit any documents and in general to fulfil in the name and on behalf of
the insured person any formalities necessary or requested by the insurance company, for the payment
by the insurance company of the amounts owed as insurance indemnity or damages into the bank
account indicated by the Bank, in case the insured risks have occurred. For this purpose, the Bank
may use a collateral deposit account, opened on the name of the Borrower or Guarantor as account
holder, as the case may be, which the Bank is authorised to open at any time or close at any time
after the reimbursement of all amounts owed under the Financing Documents, without the
notification of the Borrower or of the Guarantor or other formalities being necessary. The
Borrower/Guarantor cannot dispose of such amounts until the reimbursement of all amounts owed
under the Financing Documents without the Bank’s prior approval. The Bank is authorised to satisfy
the Secured Obligations from the amounts collected on the debtor’s account as insurance indemnity
or damages (including in case of expropriation or other limitation of the ownership rights established
through a law or other public authority act), informing the Borrower/Guarantor of the amounts
debited for the Secured Obligations. The interest capitalized by the Bank for the amounts in the
above mentioned collateral deposit account is the interest capitalized for on-sight deposits and is
variable for the entire validity period of the deposit. The Bank has the right to unilaterally modify the
applicable interest rate, the new interest rate becoming applicable by display at the Bank’s premises
and/or by publishing on the Bank’s website. The interest shall be capitalized on the date the deposit
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is closed and paid into the Borrower’s or the Guarantor’s current account opened with the Bank, as
the case may be.
3.5
Registration of the Mortgage
(a)
The Guarantor undertakes to fulfil, on its expense, the formalities for the registration of the
Mortgage established under the Mortgage Agreement (including Bank’s control on the Bank
Accounts in accordance with Article 2410 of the Romanian Civil Code) with the Electronic Archive,
shareholders’ register kept by the relevant company, the Central Depository or any other register
company, the register of Government bonds and any other register, in accordance with the legal
provisions, and shall make available to the Bank the registration endorsement certified by the
Electronic Archive operator that made the registration and a certified copy or an excerpt of the
shareholders’ register or any other relevant register to certify the registration of the Mortgage.
(b)
If the description of the Mortgaged Property which was initially registered with the Electronic
Archive does not cover the Products of the Mortgaged Property (except for the amounts of money
the origin of which can be traced), the Bank shall register, on the Guarantor’s expense, with the
Electronic Archive, an amended registration endorsement within 15 days as of the date when the
Guarantor obtained such Products, in order to maintain the rank of the Mortgage on such Products,
in accordance with Article 2412 of the Romanian Civil Code.
(c)
In case of any discrepancies between the information in the registration endorsement registered with
the Electronic Archive and the information in these GCS and the Mortgage Agreement, the
information in these GCS and the Mortgage Agreement shall prevail.
(d)
The Guarantor hereby acknowledges and agrees that the Bank shall have the right (but not the
obligation), without notifying the Guarantor, to submit, amend or renew the registration endorsement
with the Electronic Archive, and/or to send any or all notices or registrations with any competent
register and to take any measures permitted by the law in order to make sure that the Mortgage
established under the Mortgage Agreement is and continues to be a valid and legal Movable
Mortgage, fully binding on and enforceable against the Guarantor and third parties. The Guarantor
authorizes the Bank to debit its current account with the value of these registration expenses.
(e)
If all Secured Obligations are fully and permanently satisfied, the Bank undertakes to deregister the
Mortgage from the Electronic Archive, within no more than 10 days as of the date of the full and
permanent satisfaction of all the Secured Obligations. Expenses in relation to the deregistration of
the movable mortgage from the Electronic Archive are incumbent upon the Guarantor. The
Guarantor authorises the Bank to debit its current account with the equivalent value of the Electronic
Archive deregistration expenses.
(f)
The Guarantor shall make available, within the reasonable term provided by the Bank, any other
document, registration, submission, notice, notarization or other supporting document of which the
Guarantor was informed by the Bank, in a form and content satisfactory to the Bank and in
accordance with the applicable laws.
3.6
Future obligations
Under these GCS, the Parties agree that any future draw-dawns/utilisations and any other future obligations
under the Credit Facility Agreement are covered by the Mortgage established under the Mortgage
Agreement, which shall maintain its priority throughout the entire duration of the Security Period, in
accordance with Article 2370 of the Romanian Civil Code.
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3.7
Future assets
The Parties acknowledge and agree that this Movable Mortgage is established on the entire Mortgage
Property of the Guarantor, either existing on the execution date of the Mortgage Agreement or acquired or
otherwise obtained or established in the future, and that the Mortgage established under the Mortgage
Agreement on such future assets shall become effective in relation to these future assets as of the date when
they are acquired, obtained or established (or when the Guarantor otherwise acquires any rights on them),
and the rank of the Mortgage on these future assets shall be the rank provided at the time when the initial
registration endorsement is registered with the Electronic Archive, no further registration or formality being
required, in accordance with Articles 1228, 2365 and 2387 of the Romanian Civil Code.
4.
CONTINUED SECURITY
The Mortgage established under the Mortgage Agreement is a continued security and shall remain valid and
shall be effective until the full and permanent satisfaction of all the Secured Obligation and shall not cease as
a result of an interim payment related to the Secured Obligations or the fulfilment of a part of the Secured
Obligations and, in addition, this security shall not be affected in any way by any other security established
by the Guarantor in favour of the Bank or by other securities or rights of compensation held now or in the
future by the Bank in order to guarantee the Secured Obligations.
5.
GUARANTOR’S OBLIGATIONS
5.1
Guarantor’s positive obligations
Notwithstanding any provisions to the contrary under the Credit Facility Agreement or the Mortgage
Agreement, the Guarantor hereby undertakes and commits to the Bank as follows:
(a)
Protection of Bank’s interests: To take all the measures which could be necessary or
recommendable in order to protect Bank’s interests in relation to the Mortgaged Property and to
guarantee and defend Bank’s rights under these GCS and the relevant Mortgage Agreement against
the claims and requests of any third party.
(b)
Maintaining of accounting records: To maintain accurate accounting records for the assets of
which the Mortgaged Property consists.
(c)
Provision of documents: If an Event of Default occurs, at the Bank’s request, to submit to the Bank,
for keeping, all the certificates, titles, policies, permits, licenses and other documents of title or
evidence of the ownership right in relation to any part of the Mortgaged Property as the term
requested by the Bank. The Guarantor also undertakes and commits to the Bank to provide to the
insurance company with which the Insurances were executed any documents requested by such and
which are necessary for the payment of the amounts owed as insurance indemnity or remedy. If The
Guarantor does not provide these documents, the Bank can provide itself to the insurer, and can sign
on behalf of the Guarantor any documents related to the insurer and which are necessary in order to
pay all the amounts owed as insurance indemnity.
(d)
Inspection of the Mortgaged Property: To allow or facilitate, during Guarantor’s normal working
hours, the inspection of any part or the entire Mortgaged Property or related documents by the Bank
or any other entity or person appointed by or representing the Bank, in accordance with Article 2394
of the Romanian Civil Code.
(e)
Information on the obtaining of new Products: To notify the Bank within 3 (three) days as of the
date when it obtains any Products related to the Mortgaged Property, if the description of the
Mortgaged Property as registered at such time with the Electronic Archive does not cover the
Products related to the Mortgaged Property.
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(f)
Waiver of benefits: The Guarantor waives in favour of the Bank all its legal and conventional
benefits, all its rights and claims and any right of compensation or other similar defences that it
could raise against the Bank in relation to the Secured Obligations, to the maximum extent allowed
by the law, including the benefit of discussion and the benefit of division.
5.2
Guarantor’s negative obligations
Except for the provisions to the contrary agreed upon in the Credit Facility Agreement or the Mortgage
Agreement, the Guarantor undertakes and commits to the Bank as follows:
(a)
No encumbrance: Not to establish, grant and allow the survival of any other Security on the entire
Mortgaged Property or any part thereof.
(b)
No transfer (disposal): Not to transfer, sell, assign, dispose of and alienate in any other way any
right of ownership or any severance thereof or any other right or interest in relation to the entire
Mortgaged Property or any part thereof, other than in the ordinary course of business.
(c)
No waiver: Not to waive, release, settle, compromise and abandon any claim based on or in relation
to any asset of the Mortgaged Property and not to take or omit to take any action or deed whereby
the full recovery of any products of the Mortgaged Property and pecuniary Products to the extent
that and when they become due could be hindered; not to do, cause or facilitate anything which
could depreciate, endanger in any way or otherwise harm in any significant respect the value of the
Mortgage established by the Mortgage Agreement.
5.3
Remedy
If the Guarantor fails to comply with any of its obligations under this Section 5 (GUARANTOR’S
OBLIGATIONS), the Bank may (but does not have the obligation to) remedy this situation on the
Guarantor’s expense, either in person or by any other person, under the conditions that the Bank will deem
fit.
6.
ENFORCEMENT
6.1
At any time after the occurrence of an Event of Default, the Bank may proceed to the enforcement of
the Mortgage established under the Mortgage Agreement. The Bank may enforce the whole or any
part of the Mortgage established under the Mortgage Agreement and in any order determined by the
Bank.
6.2
For the enforcement of the Mortgage established under the Mortgage Agreement, the Bank can take,
at its discretion, the following measures, to make sure that it recovers the amounts owed under the
Secured Obligations from the Guarantor:
(a)
It can instruct any and all insurers, clients, suppliers, service providers or other co-contractors of the
Guarantor under the documents on which Guarantor’s rights on the Mortgaged Property rely, to
comply with such obligations directly to the Bank or a third party appointed by the Bank without the
prior consent of the Guarantor;
(b)
For the purpose of Article 2440 of the Romanian Civil Code, it can take over the Mortgaged
Property or any part thereof by its own means;
(c)
It can take over the Products on account of the Secured Obligations, the value of the Secured
Obligations decreasing pro rata to the value of the Products which were taken over; for nonpecuniary Products, their value will be determined by an independent expert assessor appointed by
the Bank;
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(d)
It can acquire (by its own means or through an enforcement body, at its discretion) possession of the
documents (if any) which prove Guarantor’s ownership title on the Mortgaged Property or any part
thereof or in relation to any assets thereof and irrespective of the holder thereof;
(e)
It can take over the Mortgaged Property for administration purposes, in accordance with Articles
2468 to 2473 of the Romanian Civil Code;
(f)
It can take any measures permitted by the Romanian law in order to recover the amounts owed under
the Secured Obligations, including those for the performance of any registrations, notices or other
necessary or recommendable opportunities in order to allow the Bank or any third-party buyer of the
Mortgaged Property or any part thereof to benefit of a full ownership title on the Mortgaged Property
or any part thereof;
(g)
It can convert in the currency of the Secured Obligations, at the exchange rate of the Bank, any
recovered amounts of money and can set off such amounts against any Secured Obligations; and
(h)
It can use any combination of the methods provided in this Section 6.2 from item (a) to (g) above,
for the purpose of satisfying Guarantor’s obligations under these GCS and the other Financing
Documents.
The Bank shall use the enforcement proceeds as provided in the Credit Facility Agreement.
6.3
If the Mortgaged Property is sold (and/or appropriated, as the case may be) in accordance with
Section 6.2 above, the value of the purchase price (and/or the appropriation value, as the case may
be) of the Mortgaged Property which is in excess to the Secured Obligations shall be paid to the
Guarantor after the full and permanent satisfaction of all the Secured Obligations. The Parties hereby
agree as follows:
(a)
if the aforementioned payment cannot be made, the amounts will be deposited in an account opened
in Romania and made available to the Guarantor or to any person who could legally have this right;
and
(b)
any fees, costs and expenses with the transfer of amounts from such account shall be borne by the
Guarantor or the person duly entitled to receive such amounts.
6.4
Notwithstanding Bank’s right to take over the Mortgaged Property or any part thereof by its own
means in accordance with Article 2440 of the Romanian Civil Code, the Bank has the right (but not
the obligation), when it enforces the Mortgage established under the Mortgage Agreement, in
accordance with the Romanian Civil Code, to approach the enforcement bodies in order to obtain the
forced takeover of the Mortgaged Property or any part thereof, as provided at Article 2442 of the
Romanian Civil Code, without first trying to repossess the Mortgaged Property or any part thereof
by its own means.
6.5
The Bank can enforce the Movable Mortgage established under the Mortgage Agreement in
accordance with (1) the provisions above and the provisions of the Romanian Civil Code, or (2)
according to the procedures provided in the Romanian Civil Procedure Code. None of the clauses
above can be construed as a limitation to Bank’s right to enforce the Movable Mortgage established
under the Mortgage Agreement in accordance with the Romanian Civil Procedure Code.
6.6
In case of enforcement in accordance with the provisions of these GCS, the Guarantor hereby
undertakes to perform and fulfil all the formalities required by the Romanian law in order to allow
the Bank (and/or, as the case may be, the person(s) to whom the Bank will sell or in favour of which
it will dispose of the Mortgaged Property as specified above) to dispose with full title of any right on
10
such assets, and it also undertakes not to hinder or delay the enforcement proceedings against the
Mortgaged Property or any part thereof.
6.7
All the payments made under the Mortgage Agreement by or on behalf of the Guarantor to the Bank
shall be made with no right of setoff, claim or withholding.
7.
FURTHER ASSURANCES
7.1
Assurances
The Guarantor shall promptly do whatever is necessary, take all measures, perform all acts and facts
and sign all the documents (including any addendum to the Mortgage Agreement, assignments,
transfers, pledges, liens, notices and instructions) and shall take all the available actions (including
submission of any documents and performance of any registrations) as specified by the Bank (and in
the form to be requested by the Bank):
(a)
to establish, register, maintain, perfect, extend or preserve the Mortgage established under the
Mortgage Agreement (or intended to be established, as the case may be) or in view of exercising any
rights, prerogatives and remedies of which the Bank benefits under these GCS, the other Financing
Documents or under the law;
(b)
to establish in favour of the Bank a mortgage on any new asset or any assets of the Guarantor located
in Romania, which are equivalent or similar to the scope of the Security that the Parties intend to
establish under the Mortgage Agreement; and/or
(c)
to facilitate, further to the occurrence of a Event of Default, the appropriation or enforcement of the
Mortgaged Property or any part thereof by or on behalf of or to the benefit of the Bank.
7.2
Decrease of the Mortgaged Property value
If all or any part of the Mortgaged Property is destroyed, damaged or its value is diminished:
(a)
the Bank shall be entitled to receive damages, even if the Secured Obligations are not determined or
payable. Damages shall be applied for the payment of the Secured Obligations;
(b)
by Guarantor’s default, and such individualized assets were not insured against destruction, damage
or decrease of value when the default occurred, the Bank may request the Guarantor to bring an
additional mortgage to cover the decrease of the Mortgaged Property value and to guarantee the
obligation to pay damages; and
(c)
by Guarantor’s default, and such individualized assets were insured against destruction, damage or
decrease of value when the default occurred, the Bank may request the Guarantor to bring additional
securities, other than a mortgage, to cover the decrease of the Mortgaged Property value and to
guarantee the obligation to pay damages.
8.
AMENDMENT AND TERMINATION
8.1
No amendment to the Mortgage Agreement shall have effects unless it is made in writing and signed
by the authorized representatives of each Party.
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8.2
The Bank can unilaterally amend these GCS at any time, and such amendment shall have effects as
of the date of its publication on the Bank’s website (www.bcr.ro). The GCS in force on the execution
date of the Mortgage Agreement shall apply to each Mortgage Agreement.
9.
FINAL PROVISIONS
9.1
Notices: Any notice sent pursuant to these GCS and to the Mortgage Agreement shall be made in
accordance with Clause 15.7 of Section 15 (Final Provisions) of the General Conditions for Credit
Facilities. The Bank shall immediately notify the Guarantor on any change of its registered
headquarters. The Guarantor undertakes, on its expense, to notify the Bank on any change of its
registered headquarters/domicile and to register with the Electronic Archive any change of domicile
or, as the case may be, the registered headquarters of a party to the Mortgage Agreement.
9.2
Severability: If one or several provisions of any of the Financing Documents is or becomes illegal,
invalid or unenforceable for any reason, this shall not damage or affect the legality, validity or
enforceability of the other provisions of such Financing Document and, if necessary in this respect,
the illegal, invalid or unenforceable provisions shall be considered to not have been included in such
Financing Document.
9.3
Force majeure, fortuitous case and hardship: The Guarantor expressly agrees to waive the right of
claiming the occurrence of any event considered, under the Romanian law, as a force majeure case,
fortuitous case or hardship, in relation to its impossibility to comply with any obligation under any
Financing Document.
9.4
Successors: Each of these GCS and the Mortgage Agreement is binding on the Guarantor and its
successors and shall benefit to the Bank, its successors and assigns. The Guarantor shall not assign,
novate or transfer in any other way, in full or in part, its rights or obligations under these GCS or any
other Financing Documents, without the prior written consent of the Bank. The Guarantor confirms
that the Bank is entitled to assign, novate, transfer or otherwise dispose of all or any of its rights and
obligations under the Financing Documents (and the Mortgage established under the Mortgage
Agreement shall survive to the benefit of any successor of the Bank further to any transfer by
novation made by the Bank in relation to any of the rights and obligations under any of the
Financing Documents). To the maximum extent permitted by the law, this provision is an anticipated
consent to any such transfer of rights and/or obligations, for the purpose of Article 1315 and Article
1317 of the Romanian Civil Code.
9.5
Survival of mortgage action: If the right of action concerning the Secured Obligations is
extinguished by prescription, according to Article 2504 of the Romanian Civil Code the right to file
mortgage action will not be extinguished. The Bank may, in accordance with the law, enforce the
Mortgaged Property up to the value thereof.
9.6
Writ of enforcement: The Mortgage Agreement is accessory to the Credit Facility Agreement and it
is a writ of enforcement in accordance with Article 2431 of the Romanian Civil Code and Article
120 of Government Emergency Ordinance No. 99 of 6 December 2006 on credit institutions and
capital adequacy.
9.7
Applicable language: The language governing these GCS and the Mortgage Agreement is the
Romanian language. Unless otherwise expressly provided in the Financing Documents, all the
documents to be submitted and all the correspondence exchanged under these GCS and the
Mortgage Agreement shall be written in Romanian or, if in another language, they shall be
accompanied by a notarized translation in Romanian, which translation will prevail in the
relationships between the Guarantor and the Bank.
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10.
GOVERNING LAW AND JURISDICTION
10.1
Governing law: These GCS, any other Financing Document and any non-contractual obligations
arising from or in relation thereto shall be governed and construed, in all respects, in accordance
with the Romanian law.
10.2
Jurisdiction: Any lawsuit and dispute, trial, action or proceedings which could arise from or in
relation to these GCS and any other Financing Document and in relation to any non-contractual
obligations arising from or in relation thereto shall be referred to the competent Romanian court of
law.
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CHAPTER 2 – SPECIAL PROVISIONS –MOVABLE MORTGAGE OVER RECEIVABLES
This Chapter 2 (Special provisions –Movable Mortgage over Receivables) hereof contains special rules
which are applicable when a Movable Mortgage over Receivables is established under the Mortgage
Agreement executed by the Guarantor and the Bank.
1.
SPECIFIC REPRESENTATIONS AND WARRANTIES
i.
In addition to the representations and warranties provided at Section
(REPRESENTATIONS AND WARRANTIES) of Chapter 1 hereof, the Guarantor represents that:
2
(a)
The Mortgagor did not pay the Receivable, in full or in part, to the Guarantor and no cause for setoff
or decrease of the receivable between the Guarantor and the Mortgagor has occurred. The Guarantor
shall not accept any payment from the Mortgagor on account of the Receivable other than as
provided in these GCS and under the Mortgage Agreement.
(b)
The Mortgagor is solvent and no proceedings have been initiated against it in view of opening
insolvency, bankruptcy, winding-up, judicial reorganization or any similar proceedings.
2.
SPECIFIC PROVISIONS FOR THE MOVABLE MORTGAGE OVER RECEIVABLES
2.1
If, under the relevant Mortgage Agreement, the Guarantor has been granted the right to collect the
Receivables in accordance with Article 2406 of the Romanian Civil Code, the Bank may withdraw
this right subsequently, throughout the development of the Mortgage Agreement.
2.2
In the case provided at Clause 2.1 above, i.e. if, under the relevant Mortgage Agreement, the use of a
current account is provided, the following provisions are applicable:
(a)
Any payment made by the Mortgagor on account of the Receivable, after notification of the
Mortgage established under the relevant Mortgage Agreement, shall be considered valid and shall
discharge the Mortgagor of its payment obligation only if made into the current account (as
identified in the relevant Mortgage Agreement) (the Current Account), unless the Bank otherwise
notified the Mortgagor.
(b)
At any time, by notice to the Guarantor and the Mortgagor in this respect, the Bank can cancel
Guarantor’s right to collect the Receivable into the Current Account, and any amounts payable on
account of the Receivable are to be paid into the collateral deposit account (as identified in the
relevant Mortgage Agreement) (the Collateral Deposit Account) or in any other account notified by
the Bank in this respect to the Mortgagor. Only under these circumstances is the Mortgagor
discharged of such payment obligation, unless the Bank otherwise notified the Mortgagor.
(c)
The amounts paid into the Collateral Deposit Account are frozen as a security up to the value of the
Secured Obligations, and the Bank shall release the amounts in excess of the Secured Obligations
into the Current Account.
2.3
If, in the case provided at Clause 2.1 above, the relevant Mortgage Agreement provides for the use
of a frozen collateral deposit account, the following provisions shall become applicable:
(a)
Any payment made by the Mortgagor on account of the Receivable, after notification of the
Mortgage established under the relevant Mortgage Agreement, shall be considered valid and shall
discharge the Mortgagor of its payment obligation only if made into the collateral deposit account
(as identified in the relevant Mortgage Agreement) (the Collateral Deposit Account), unless the
Bank otherwise notified the Mortgagor.
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(b)
At any time, by notice to the Guarantor and the Mortgagor in this respect, the Bank can cancel
Guarantor’s right to collect the Receivable into the Collateral Deposit Account, and any amounts
payable on account of the Receivable are to be paid into the account notified by the Bank to the
Mortgagor to this effect. Unless otherwise notified by the Bank, the Mortgagor is discharged of such
payment obligation only when it makes the payment under these circumstances.
(c)
The amounts paid into the Collateral Deposit Account are frozen as a security up to the value of the
Secured Obligations, and the Bank shall release the amounts in excess of the Secured Obligations
into the Current Account, at Guarantor’s request.
2.4
If, under the relevant Mortgage Agreement, Guarantor’s right to collect the Receivables is cancelled,
and the receivables are collected into an account opened on the Bank’s name, the following
provisions become applicable:
(a)
Any payment by the Mortgagor on account of the Receivable, after notification of the Mortgage
established under the relevant Mortgage Agreement, shall be considered valid and shall discharge
the Mortgagor of its payment obligation only if made into the account notified by the Bank (the
BCR Account), opened on the Bank’s name, by issuing to the Mortgagor a receipt for the amounts
received and sending a copy thereof to the Guarantor. Only under these circumstances is the
Mortgagor discharged of such payment obligation, unless the Bank otherwise notified the
Mortgagor.
(b)
The amounts paid into the BCR Account are frozen as a security up to the value of the Secured
Obligations, and the Bank shall release the remaining amounts into the Current Account into the
Guarantor’s current account [, at Guarantor’s request]. The Guarantor authorizes the Bank to
withhold from the amounts thus paid by the Mortgagor any amount for the payment of any debts,
according to the rules provided herein and in the Credit Facility Agreement.
2.5
Notification of the Mortgage to the Mortgagor: The execution of the Mortgage Agreement shall
be notified by the Bank to the Mortgagor, according to the template attached to the relevant
Mortgage Agreement.
2.6
Payment made after the occurrence of an Event of Default. If, under the relevant Mortgage
Agreement, the Guarantor is entitled to collect the Receivables according to Article 2406 of the
Romanian Civil Code, in case the Borrower fails to comply with its obligations to repay the
principal, the related interest and fees arising from the Credit Facility Agreement and if any other
Event of Default occurs, notwithstanding any of the provisions above in this Clause 2 (Special
Provisions- Movable Mortgage over Receivables), the Bank has the right, but not the obligation, to
send to the Mortgagor a notice informing it that as of such time any payment is to be considered
valid and is to discharge the Mortgagor of its payment obligations only if made into the account
notified by the Bank.
2.7
Titles to the Receivables. The Guarantor represents that it shall deliver to the Bank, on the
execution date of the Mortgage Agreement, the titles evidencing the Receivable and its accessories,
as well as the securities (if any) consisting in the documents listed in the appendices to the Mortgage
Agreement, in a form satisfactory to the Bank. The Guarantor also undertakes to deliver to the Bank
the supporting titles to the Receivables which will result in the future from the orders, requests,
agreements, sub-contracts, invoices or any other documents executed on the basis of framework
agreements. The supporting titles to the Receivable shall be returned to the Guarantor at the end of
the Security Period.
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3.
GUARANTOR’S ADDITIONAL POSITIVE OBLIGATIONS
3.1
In addition to the positive obligations provided at Clause 5.1 of Chapter 1 (General Provisions) of
Chapter 1, the Guarantor undertakes and commits to the Bank in relation to each of the Receivables,
as follows:
(a)
to take all the measures in order to maintain in force and to preserve and enforce its rights related to
all Receivables, to fulfil all the obligations incumbent upon it in relation to them in order to make
sure that the amount of the Receivable will be unconditionally due and payable on the due date into
the account indicated in the relevant Mortgage Agreement and to enforce all the rights and remedies
owed to it on the basis of such Receivables;
(b)
to make all necessary efforts for the satisfaction of the Receivable and for the Mortgagor to pay the
Receivable into the account provided in the relevant Mortgage Agreement, also having the duty that,
if it sues the Mortgagor for the payment of the Receivable, to bring the Bank as party to the case –
being understood that the Bank has the right, but not the obligation to recover in court the amounts
which have not been paid by the Mortgagor in accordance with Article 2407 of the Romanian Civil
Code; and
(c)
to submit to the Bank an updated list (according to the appendix to the relevant Mortgage
Agreement) containing the details of the commercial agreements and related Receivables, along with
the related securities. For the avoidance of any doubt, each such updated list shall be considered to
be a part of the relevant Mortgage Agreement, the new list replacing the previous one, with no need
to execute an addendum, and having effects as of the execution date of the updated list by the
parties’ representatives. The updated list shall be registered with the Electronic Archive on the basis
of an amending endorsement, the Mortgage thus extending on any new Receivables related to the
existing agreements and on any Receivables related to the new agreements executed after the date of
the relevant Mortgage Agreement.
4.
SPECIAL PROVISIONS ON THE ENFORCEMENT OF THE MOVABLE MORTGAGE
OVER RECEIVABLES
4.1
In addition to the measures provided at Clause 6.2 of Chapter 1 (General Provisions) of Chapter 1, if
the Movable Mortgage established under the Mortgage Agreement is enforced, the Bank can also
take, at its discretion, the following measures, in order to make sure that it recovers from the
Guarantor the amounts owed on the basis of the Secured Obligations:
(a)
As regards the Receivables and any Products owed on the basis of the Receivables, if the Bank
consented for the Guarantor to charge such Receivables and Products according to these GCS and
the relevant Mortgage Agreement, it can take over the original receivable instrument, it can request
and obtain payment from the Mortgagors and apply such proceeds for the payment of any
outstanding Secured Obligations or, at its discretion, it can sell such Receivable and collect the price,
which it will apply for the payment of any outstanding Secured Obligations;
(b)
As regards the Receivables and any Products owed on the basis of the Receivables, if the Bank did
not consent or withdraw its consent for the Guarantor to charge such Receivables and Products
according to these GCS and the relevant Mortgage Agreement, it can continue to request and obtain
payment from the Mortgagors and apply such proceeds for the payment of any outstanding Secured
Obligations or, at its discretion, it can sell such Receivable and collect the price, which it will apply
for the payment of any outstanding Secured Obligations.
16
CHAPTER 3 – SPECIAL PROVISIONS – MOVABLE MORTGAGE OVER BANK ACCOUNTS
This Chapter 3 (Special Provisions –Movable Mortgage over Bank Accounts) hereof contains special rules
which are applicable when a Movable Mortgage over Bank Accounts is established under the Mortgage
Agreement executed by the Guarantor and the Bank.
1.
REGISTRATION OF MORTGAGE OVER BANK ACCOUNTS
1.1
If the Mortgaged Property includes Bank Accounts opened with the Bank, notwithstanding the
obligation to comply with the registration formalities provided at Clause 3.5 of Chapter 1 (General
Provisions), the registration of the Movable Mortgage over these Bank Accounts is also considered
to be satisfied by maintaining these accounts opened with the Bank. The Guarantor undertakes not to
request the closing of such Bank Accounts during the Security Period.
1.2
If the Mortgaged Property includes Bank Accounts opened with other credit institutions than the
Bank, without prejudice to the obligation to fulfil the registration formalities provided at Clause 3.5
of Chapter 1(General Provisions), which remains applicable, the registration of the Movable
Mortgage over these Bank Accounts is also considered satisfied on the basis of the notice provided
at Clause 2.1(a) below, between the Guarantor, the Bank and the credit institution with which such
Bank Accounts are opened, whereby the latter agreed that it would follow the instructions whereby
the Bank would dispose of the amounts in such Bank Accounts without asking for Guarantor’s
consent.
1.3
If the Mortgaged Property includes Bank Accounts opened with other credit institutions than the
Bank, without prejudice to the obligation to fulfil the registration formalities provided at Clause 3.5
of Chapter 1(General Provisions), which remains applicable, for the Bank Accounts on which the
Bank becomes a holder or co-holder, as the case may be, on the basis of the notice provided at
Clause 2.1(a) below, between the Guarantor, the Bank and the credit institution with which such
Bank Accounts are opened, the registration of the Movable Mortgage is also deemed to have been
satisfied by the Bank acquiring the capacity of holder or co-holder, as the case may be.
2.
GUARANTOR’S ADDITIONAL OBLIGATIONS
2.1
Guarantor’s additional positive obligations: In addition to the positive obligations provided at
Clause 5.1 of Chapter 1 (GUARANTOR’S OBLIGATIONS), the Guarantor undertakes and commits
to the Bank as regards each Bank Account as follows:
(a)
if there are any Bank Accounts opened with other banks than the Bank, to provide each bank
stipulated in the appendix to the relevant Mortgage Agreement with a notice (having the form and
content provided in the template notice attached to the relevant Mortgage Agreement) and to provide
the Bank with an original copy of the notice confirmation for each of the Bank Accounts, signed by
the Guarantor and the relevant bank for such Bank Accounts;
(b)
to dispose of its Bank Accounts as necessary in its ordinary course of business, and, at any rate, only
as permitted under the Credit Facility Agreement;
(c)
authorize the transfer by the Bank (without being necessary a specific consent of the Guarantor at the
transfer moment) of the proceeds from the current accounts opened with the Bank and with any
credit institution, as per the relevant Mortgage Agreement or from the Collateral Deposit opened
with the Bank (as the case may be);
(d)
unless otherwise specified in these GCS or in the other Financing Documents, to deposit or cause the
deposit in the Bank Accounts of all the monetary Products of the Mortgaged Property;
17
(e)
all the proceeds resulting from the transfer of the assets included in the Mortgaged Property such as
described at Article 2393 of the Romanian Civil Code shall be deposited in a Bank Account which
will be at all times encumbered by a Movable Mortgage in favour of the Bank; and
(f)
all the proceeds resulting (i) from the partial or total indemnity received for the loss of the asset on
the basis of any Insurance (in which the Bank is not appointed as exclusive loss payee) resulting
from the total or partial destruction of the Mortgaged Property, if the Mortgaged Property also
includes Insurances, or (ii) received as compensation in an expropriation for public utility purposes
or for limitations of the ownership right under the law, shall be paid only into the Bank Account
provided in the relevant Mortgage Agreement, which is available to the Bank and will be at all times
encumbered by a Movable Mortgage in favour of the Bank in accordance with the Credit Facility
Agreement and the other Financing Documents. Unless otherwise permitted under the Financing
Documents, throughout the Security Period the Guarantor cannot dispose of the amounts in this
Bank Account without the Bank’s consent, in accordance with Article 2331 of the Romanian Civil
Code.
(g)
to immediately submit to the Bank, at its request, an updated list (according to the appendix to the
relevant Mortgage Agreement) containing the details of the Bank Accounts. For the avoidance of
any doubt, each such updated list shall be considered to be a part of the relevant Mortgage
Agreement, the new list replacing the previous one, with no need to execute an addendum, and
having effects as of the execution date of the updated list by the parties’ representatives. The updated
list shall be registered with the Electronic Archive on the basis of an amending endorsement, the
Mortgage thus extending on any new Bank Accounts opened after the date of the relevant Mortgage
Agreement.
2.2
Guarantor’s Additional Negative Obligations: In addition to the negative obligations provided at
Clause 5.2 of Section 5 (GUARANTOR’S OBLIGATIONS) of Chapter 1, the Guarantor undertakes
and commits to the Bank not to open and hold any bank account in any bank or financial institution
without prior notice to the Bank.
3.
SPECIAL PROVISIONS ON THE ENFORCEMENT OF THE MOVABLE MORTGAGE
OVER BANK ACCOUNTS
In addition to the measures provided at Clause 6.2 of Section 6 (ENFORCEMENT) of Chapter 1, if
the Movable Mortgage established under the Mortgage Agreement is enforced, the Bank can also
take, at its discretion, the following measures, in order to make sure that it recovers from the
Guarantor the amounts owed on the basis of the Secured Obligations:
(a)
As regards the Bank Accounts which are not controlled by the Bank according to Article 2410(2) of
the Romanian Civil Code, it can notify the banks with which such Bank Accounts are opened on its
intention to recover the amounts owed under the Secured Obligations from the amounts of money
deposited in such Bank Accounts and instruct the banks to freeze all Bank Accounts (including any
payment from such Bank Accounts) and to maintain such Bank Accounts frozen and to release the
amount standing to the credit of the Bank Accounts in its favour, for the purpose of recovering the
amounts of money owed under the Secured Obligations;
(b)
As regards the Movable Mortgage on the Bank Accounts opened with the Bank, it can set off the
amounts owed under the Secured Obligations against any amounts from the Bank Accounts opened
with the Bank;
(c)
As regards the Movable Mortgage over Bank Accounts opened with other credit institutions than the
Bank where the Bank is holder or co-holder of such Bank Accounts or where there is a tripartite
covenant between the Guarantor, the Bank and the credit institution with which the Bank Account is
opened, according to which the credit institution undertakes to comply with any instructions of the
18
Bank in relation to the amounts in such Bank Account, it can order such credit institutions to release
the amount standing to the credit of the account to its benefit; and
(d)
The Bank may debit any of the Bank Accounts with the equivalent value of the Secured Obligations.
For this purpose, the Bank may perform any foreign exchange operation and/or sign the order of
participation to the tender on the foreign exchange market, for the conversion of the proceeds
resulting from the enforcement of the Movable Mortgage into the currency of the Credit Facility
Agreement, at the exchange rate offered by the Bank to non-banking clients, if the Credit Facility
Agreement is in another currency than the currency of the Bank Accounts.
4.
ADDITIONAL SPECIAL PROVISIONS ON THE ENFORCEMENT OF THE MOVABLE
MORTGAGE OVER COLLATERAL DEPOSIT
4.1
Collateral Deposit Reduction. In case the Secured Obligations are not completely and definitively
fulfilled, the Guarantor authorizes the Bank to reduce the Collateral Deposit at the maturity date of
any amount due under the Secured Obligations, at the end of the business day, with the equivalent of
the amount due and unpaid. The Guarantor authorizes the Bank (i) to transfer the amount with which
the Collateral Deposit has been reduced in the Borrower’s credit and/or interest account, without
being necessary any other notice or power of attorney and without accelerate the Credit Facility and
(ii) to utilize the amount such transferred for the reimbursement of the amount due and unpaid under
the Secured Obligations.
4.2
Unavailability. The amount from the Collateral Deposit are frozen, limited to the value of the
Secured Obligations, starting with the transfer day in the Collateral Deposit and until all Secured
Obligations are completely and irrevocably fulfilled.
4.3
Liquidation. The liquidation of the Collateral Deposit and its closing are made by the Bank only
after the fulfilment of all the obligations under the Credit Facility Agreement. The Collateral Deposit
cannot be close if it represents a security for the Bank. If the Collateral Deposit is due and the
obligation for which it was opened has been fulfilled, the Collateral Deposit will be closed through
the transfer of the amounts existing in this deposit, into the current account of the Guarantor.
19
CHAPTER 4 – SPECIAL PROVISIONS – MOVABLE MORTGAGE OVER INSURANCES
This Chapter 4 (Special Provisions –Movable Mortgage over Insurances) hereof contains special rules which
are applicable when a Movable Mortgage over Insurances is established under the Mortgage Agreement
executed by the Guarantor and the Bank.
1.
GUARANTOR’S ADDITIONAL OBLIGATIONS
1.1
Guarantor’s additional positive obligations: In addition to the positive obligations provided at
Clause 5.1 of Chapter 1 (General Provisions), the Guarantor undertakes and commits to the Bank in
relation to each of the Insurances, as follows:
(a)
to sent to each insurer stipulated in the relevant Mortgage Agreement a notice having the form and
content provided in the template notice attached to the relevant Mortgage Agreement and to make
that an original copy of the notice confirmation for each of the Insurances, in the form provided in
the relevant Mortgage Agreement, signed by such insurance company, is sent to the Bank;
(b)
if the Bank is appointed as Insurance payee, to determine the introduction of a clause in each of the
Insurances whereby the Bank is appointed as sole payee of any and all indemnities and products in
case of occurrence of the insured risk, including all the rights whatsoever and the restitutions of
premiums, in a form satisfactory for the Bank; the Bank shall apply the amounts thus paid by the
insurers for the payment of the Secured Obligations, even if they have not fallen due, according to
Article 2405 of the Romanian Civil Code;
(c)
if the Bank is not appointed as Insurance payee, to ensure the compliance by the insurer of Clause
2.1(f) of the above Chapter 3 (Special Provisions- Movable Mortgage over Bank Accounts) ;
(d)
to determine the insurer or the member of the relevant insurance company to inform the Bank and
the Guarantor (1) on any rescission, termination or amendment of any Insurance, at least 45
(fortyfive) days before such rescission, termination, amendment or expiry has effects, (2) any noncompliance with the obligation to pay the insurance premium, immediately, (3) any expiry by nonrenewal of any Insurance and (4) any action or inaction or occurrence of any event of which the
insurer is aware and which could invalidate or determine the (total or partial) impossibility to enforce
such Insurance, immediately;
(e)
to submit the original copy of each Insurance and/or, as the case may be, the original copy of the
addendum to the Insurance with the Bank, no later than the date of first utilisation from the facility
credit, in case of new Insurances or at least 5 (five) days before the expiry date of the Insurance, in
case of their renewal;
(f)
from time to time after the execution of the Mortgage Agreement and the Security Period, as regards
any new insurance policies or, as the case may be, in relation to the renewal, expiry, rescission or
replacement of any Insurance:
(i)
within 5 (five) days as of the date of such new insurance or, as the case may be, as
of the date of renewal or replacement of such Insurance, to execute an addendum to
the Mortgage Agreement in order to include the new insurances in the relevant
appendix to the Mortgage Agreement (by sending to the Bank a notice having the
form provided in the appropriate appendix to the Mortgage Agreement and an
updated list of Insurances having the form provided in the appropriate appendix of
the Mortgage Agreement so as to include the new Insurances in the appropriate
appendix of the Mortgage Agreement; and
20
(ii)
to comply with the requirements provided at Clauses 1.1 (a) - (e) of this Chapter and
Clause 3.5 of Chapter 1 (General Provisions).
1.2
Guarantor’s additional negative obligations: In addition to the negative obligations provided at
Clause 5.2 of Chapter 1(General Provisions) , the Guarantor undertakes and commits to the Bank
not to appoint additional Insurance payees other than the Bank.
2.
SPECIAL PROVISIONS ON THE ENFORCEMENT OF THE MOVABLE MORTGAGE
OVER INSURANCES
2.1
In addition to the measures provided at Clause 6.2 of Chapter 1 (ENFORCEMENT), if the Movable
Mortgage established under the Mortgage Agreement is enforced, the Bank can also take, at its
discretion, the following measures, in order to make sure that it recovers from the Guarantor the
amounts owed on the basis of the Secured Obligations:
(a)
As regards the Insurances and any Products owed on the basis of the Insurances, if the Bank
consented that the Guarantor would collect such Insurances and Products according to these GCS
and the relevant Mortgage Agreement, it can take over the insurance agreement in original form, it
can request and obtain payment from such insurers and apply any such proceeds for the payment of
any outstanding Secured Obligations, can provide to the insurer and can sign any documents
necessary for payment of all the amounts owed as insurance indemnity or damages; or
(b)
As regards the Insurances and any Products owed on the basis of the Insurances, if the Bank did not
consent or withdraw its consent for the Guarantor to collect such Insurances and Products according
to these GCS and the relevant Mortgage Agreement, it can continue to request and obtain payment
from such insurers and apply any such proceeds for the payment of any outstanding Secured
Obligations.
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CHAPTER 5 – SPECIAL PROVISIONS –MOVABLE MORTGAGE OVER GOODWILL
This Chapter 5 (Special provisions –Movable Mortgage over Goodwill) hereof contains special rules which
are applicable when a Movable Mortgage over Goodwill is established under the Mortgage Agreement
executed by the Guarantor and the Bank. For the avoidance of any doubt, the provisions of the other
Chapters hereof containing special provisions shall be applicable to the Mortgage over Goodwill by
reference to the components thereof (e.g., Chapter 6 (Special provisions – Intellectual Property Rights
Mortgage) will be applicable if the Goodwill includes Intellectual Property Rights).
1.
REGISTRATION OF THE MOVABLE MORTGAGE OVER GOODWILL
Without prejudice to the obligation to comply with the registration formalities provided at Clause 3.5 of
Chapter 1(General Provisions), the Guarantor undertakes to register with the Trade Registry the
establishment of the Movable Mortgage over Goodwill in accordance with Article 21(a) of Law 26/1990 on
the trade registry, as further amended and supplemented, and with any other books (including shareholders’
register) where the Goodwill elements are recorded, and to submit to the Bank the proof on the performance
of such registrations.
2.
GUARANTOR’S ADDITIONAL POSITIVE OBLIGATIONS
2.1
In addition to the positive obligations provided at Clause 5.1 of Chapter 1 (General Provisions), the
Guarantor undertakes and commits to the Bank in relation to the Goodwill, as follows:
(a)
to maintain and preserve, in good condition and repair (except for normal wear and tear) and to use
with the care of a diligent owner all the goods of which the Goodwill consists or will consist;
(b)
to deposit the proceeds resulting from the transfer of any element of the Goodwill in accordance with
Article 2393 of the Romanian Civil Code into the account opened with the Bank and to inform the
Bank thereon. The Guarantor cannot dispose of the amounts collected in this account without the
Bank’s prior written consent;
(c)
to insure the assets of which the Goodwill consists, as listed in the Mortgage Agreement, against all
risks for the entire Security Period and to appoint the Bank and sole beneficiary of the rights to be
indemnified under the insurance policy and of any other amounts collected as price, value or
remedies in relation to the improvements to the immovable assets of which the Goodwill consists;
(d)
for the purpose of evidence, the Guarantor undertakes to send monthly updated lists with the
situation of all the rights and assets which are added to the Goodwill during the previous month. For
the avoidance of any doubt, each such updated list shall be considered to be a part of the relevant
Mortgage Agreement, the new list replacing the previous one, with no need to execute an addendum
between the contractual parties in this respect, and having effects as of the execution date of such
updated appendix by the parties’ representatives. For the purpose of evidence, the new situation of
the assets which are included in the Guarantor’s Goodwill in the updated appendix (if the case) shall
be registered with the publicity registers (Electronic Archive, shareholders’ register, etc.), the
Movable Mortgage established under the relevant Mortgage Agreement thus extending on any new
assets which will be part of the Guarantor’s Goodwill after the date of the relevant Mortgage
Agreement, even in the absence of such further registrations; and
not to execute any total or partial lease agreement for the Goodwill or any element thereof
throughout the entire Security Period without the Bank’s prior written consent.
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CHAPTER 6 – SPECIAL PROVISIONS –MOVABLE MORTGAGE OVER INTELLECTUAL
PROPERTY RIGHTS
This Chapter 6 (Special provisions – Movable Mortgage over Intellectual Property Rights) hereof contains
special rules which are applicable when a Movable Mortgage over Intellectual Property Rights is established
under the Mortgage Agreement executed by the Guarantor and the Bank.
1.
REGISTRATION OF
PROPERTY RIGHTS
THE
MOVABLE
MORTGAGE
OVER
INTELLECTUAL
Without prejudice to the obligation to comply with the registration formalities provided at Clause 3.5 of
Chapter 1(General Provisions), the Guarantor undertakes (i) to promptly file, in accordance with the legal
provisions, a request for the registration of the relevant Mortgage Agreement and the Movable Mortgage
established under the relevant Mortgage Agreement on the Intellectual Property Rights with the State Office
for Inventions and Trademarks and/or any other relevant authority, as provided in the relevant Mortgage
Agreement, on its expense and to provide to the Bank (ii) immediately after filing, the proof of filing in
accordance with para. (i) above and, within 60 (sixty) days (or a longer term, if the Bank wishes, at its free
and absolute discretion, to grant an extension) as of the date of the relevant Mortgage Agreement, a certified
excerpt issued by the State Office for Inventions and Trademarks and by any other relevant authority, as
provided in the relevant Mortgage Agreement, to certify the aforementioned registration of the relevant
Mortgage Agreement and of the Movable Mortgage established under the Mortgage Agreement on the
Intellectual Property Right.
2.
GUARANTOR’S ADDITIONAL POSITIVE OBLIGATIONS
2.1
In addition to the positive obligations provided at Clause 5.1 of Chapter 1 (General Provisions), the
Guarantor undertakes and commits to the Bank in relation to each of the Intellectual Property Rights,
as follows:
(a)
to take all the measures and draft all the documents which could be necessary in order to maintain
the existence and validity of the Intellectual Property Rights and, if applicable, to make its best
efforts in order to protect and preserve the Intellectual Property Rights against theft, destruction,
unauthorized access, copying or use by third parties;
(b)
to pay all the registration, renewal and other fees which could be owed in relation to any Intellectual
Property Right before or immediately after they become due and to make available to the Bank, at its
request, a receipt for such fees or any other supporting document to prove the payment of such fees;
and
(c)
not to abandon, cause the termination or allow that any Intellectual Property Right would become
null or be extinguished or be subject to a successful appeal by claiming non-use or other reason,
without the Bank’s prior written consent.
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CHAPTER 7 – SPECIAL PROVISIONS – MOVABLE MORTGAGE OVER PASSWORDPROTECTED BEARER CERTIFICATES OF DEPOSIT / DISCOUNTED CERTIFICATES
OF DEPOSIT / GOVERNMENT BONDS
This Chapter 7 (Special provisions – Movable Mortgage over Password-Protected Bearer Certificates of
Deposit / Discounted Certificates of Deposit / Government Bonds) hereof contains special rules which are
applicable when a Movable Mortgage over Password-Protected Bearer Certificates of Deposit / Discounted
Certificates of Deposit / Government Bonds is established under the Mortgage Agreement executed by the
Guarantor and the Bank.
1.
EXTENSION OF THE MOVABLE MORTGAGE OVER THE COLLATERAL DEPOSIT
1.1
Without prejudice to Clause 3.1 of Chapter 1 (General Provisions), but in the enforcement of this
clause, the Guarantor establishes in favour of the Bank a Movable Mortgage over the Collateral
Deposit identified by the relevant Mortgage Agreement where the amounts of money related to
Password-Protected Bearer Certificates of Deposit, Discounted Certificates of Deposit or
Government Bonds are transferred, as well as over the amount standing to the credit of such
Collateral Deposit, for the purpose provided at Clause 3.1 of Chapter 1 (General Provisions).
2.
GUARANTOR’S ADDITIONAL NEGATIVE OBLIGATIONS
In addition to the negative obligations provided at Clause 5.2 of Chapter 1(General Provisions) , the
Guarantor undertakes and commits to the Bank that, after having appointed the Bank as trustee of the
Password-Protected Bearer Certificates of Deposit, not to request the return of the PasswordProtected Bearer Certificates of Deposit held in trusteeship by the Bank throughout the entire
Security Period. Password-Protected Bearer Certificates of Deposit which are subject to the Movable
Mortgage established under the relevant Mortgage Agreement are frozen throughout the entire
Security Period.
3.
SPECIFIC PROVISIONS FOR THE MOVABLE MORTGAGE OVER PASSWORDPROTECTED BEARER CERTIFICATES OF DEPOSIT, DISCOUNTED CERTIFICATES
OF DEPOSIT AND GOVERNMENT BONDS
(a)
Redemption or unfreezing. If, until the due date of the Password-Protected Bearer Certificates of
Deposit, the Discounted Certificates of Deposit or the reference date of the Government Bonds or
until the redemption date of the Government Bonds as provided in the issuance prospectus (as the
case may be):
(i)
The Secured Obligations are not fully and permanently satisfied and the Bank did
not capitalize the Password-Protected Bearer Certificates of Deposit, the Discounted
Certificates of Deposit or the Government Bonds on the secondary market (as the
case may be), on their due date, the Bank shall redeem the certificates on the basis of
the authorization given by the Guarantor by execution of the Mortgage Agreement
and shall transfer the equivalent value of the Password-Protected Bearer Certificates
of Deposit, the Discounted Certificates of Deposit (face value) or the Government
Bonds (as the case may be) and the related interest owed to the Guarantor into its
Collateral Deposit account provided at Clause 1.1 above; or
(ii)
The Secured Obligations are fully and permanently satisfied, and the Bank did not
enforce the Movable Mortgage established under the relevant Mortgage Agreement,
on the due date of the Password-Protected Bearer Certificates of Deposit, the
Discounted Certificates of Deposit or the reference date of the Government Bonds or
the redemption date of the Government Bonds as provided in the issuance
prospectus, the Password-Protected Bearer Certificates of Deposit, the Discounted
24
Certificates of Deposit or the Government Bonds (as the case may be) shall be
automatically unfrozen, in view of collecting their equivalent value.
(b)
Unavailability for Trading. The Password-Protected Bearer Certificates of Deposit, the Discounted
Certificates of Deposit or the Government Bonds (as the case may be) which are subject to the
Movable Mortgage established under the relevant Mortgage Agreement are unavailable for trading
as of the execution date of the relevant Mortgage Agreement until the due date of the PasswordProtected Bearer Certificates of Deposit, the Discounted Certificates of Deposit or the reference date
of the Government Bonds or until the redemption date of the Government Bonds as provided in the
issuance prospectus (as the case may be).
(c)
Enforcement of Movable Mortgage. In case of a peaceful enforcement of the Movable Mortgage
by the Bank, by appropriation/direct sale to a third party, on an arm’s length basis, the Guarantor
hereby undertakes to agree in writing on the enforcement of the Movable Mortgage on the basis of
which the Bank will send to the Government bond deposit and settlement system a message to
confirm that the Guarantor agrees to the enforcement of the Movable Mortgage.
(d)
Registration of the account symbol with the Electronic Archive. The Guarantor agrees to the
registration with the Electronic Archive of the account symbol showing the Discounted Deposit
Certificates, assuming all the risks deriving therefrom.
(e)
Return of necessary and useful expenses. For Password-Protected Bearer Certificates of Deposit,
the Bank undertakes to preserve under the best conditions the Password-Protected Bearer
Certificates of Deposit which it held in trusteeship, as a mere administrator in accordance with
Articles 795 to 799 of the Romanian Civil Code, and it is entitled to receive from the Guarantor, on
the date of the return thereof, the necessary and useful expenses it made for the preservation thereof.
The Guarantor undertakes to pay to the Bank, before the release of the certificates, the amounts
representing the equivalent value of the necessary and useful expenses for the preservation of the
movable assets, made by the Bank. For the avoidance of any doubt, both the Bank and the Guarantor
represent that the submission of such Password-Protected Bearer Certificates of Deposit is not an
essential obligation of the Mortgage Agreement and that they agreed to execute a Movable Mortgage
under Article 2387 et seq. of the Romanian Civil Code, and not a pledge agreement (under Articles
2480 to 2494 of the Romanian Civil Code).
(f)
Capitalization. The Guarantor expressly authorizes the Bank that, if an Event of Default occurs, the
Bank shall satisfy itself with the proceeds resulting from the capitalization of Discounted Certificates
of Deposit / Password-Protected Bearer Certificates of Deposit on the market, at the value of the
redemption rate on such date.
25
CHAPTER 8 – SPECIAL PROVISIONS – MOVABLE MORTGAGE OVER TANGIBLE ASSETS
This Chapter 8 (Special provisions – Movable Mortgage over Tangible Assets) hereof contains special rules
which are applicable when a Movable Mortgage over Tangible Assets is established under the Mortgage
Agreement executed by the Guarantor and the Bank.
1.
GUARANTOR’S ADDITIONAL POSITIVE OBLIGATIONS
1.1
In addition to the positive obligations provided at Clause 5.1 of Chapter 1 (General Provisions), the
Guarantor undertakes and commits to the Bank in relation to each of the Tangible Assets, as follows:
(a)
to maintain and preserve, in good condition and repair (except for normal wear and tear) and to use
all Tangible Assets with the care of a diligent owner; and
(b)
to insure the Tangible Assets against all risks throughout the entire Security Period and to assign in
favour of the Bank the rights of indemnity arising from the insurance policy and any other proceeds
collected as price, value or remedies concerning the Tangible Assets;
2.
SPECIAL PROVISIONS ON THE ENFORCEMENT OF THE MOVABLE MORTGAGE
OVER TANGIBLE ASSETS
2.1
In addition to the measures provided at Clause 6.2 of Chapter 1(General Provisions), if the Movable
Mortgage established under the Mortgage Agreement is enforced, the Bank can also take, at its
discretion, the following measures, in order to make sure that it recovers from the Guarantor the
amounts owed on the basis of the Secured Obligations:
(a)
It can take over (by its own means or with the assistance of an enforcement body, at its discretion),
from anyone who holds it, any mortgaged Tangible Assets, with all its accessories, and can, without
move it, take the necessary measures for such Tangible Asset not to be used anymore, irrespective of
the person who holds it;
(b)
It can sell any Tangible Assets by public tender or direct negotiation, under one or several
agreements, as a going concern or severally, at any time and in any place (and no matter if such
Tangible Assets are held or not by the Bank) and may apply the price thus obtained for the payment
of the Secured Obligations; and/or
(c)
It may appropriate any Tangible Assets on account of the Secured Obligations in accordance with
Articles 2460 to 2463 of the Romanian Civil Code.
26
CHAPTER 9 – SPECIAL PROVISIONS – MOVABLE MORTGAGE OVER SHARES
This Chapter 9 (Special provisions – Movable Mortgage over Shares) hereof contains special rules which are
applicable when a Movable Mortgage over Shares is established under the Mortgage Agreement executed by
the Guarantor and the Bank.
1.
GUARANTOR’S ADDITIONAL OBLIGATIONS
1.1
In addition to the positive obligations provided at Clause 5.1 of Chapter 1 (General Provisions), the
Guarantor undertakes and commits to the Bank in relation to each of the Shares, as follows:
(a)
it shall notify the Bank on its intention to perform any operation of purchase, donation, share capital
increase, merger, de-merger or any other operation which causes a change in the number of
Guarantor’s Shares which are mortgaged under the Mortgage Agreement;
(b)
for the purpose of evidence, the Guarantor undertakes that, within 5 (five) days as of the registration
of the operation provided at para. (a) above with the relevant Trade Registry, it shall provide to the
Bank the proof of registration with the Trade Registry and an updated list with the situation of the
(new) mortgaged Shares. For the avoidance of any doubt, the thus updated list shall be considered to
be a part of the Mortgage Agreement, the new list replacing the previous one, with no need to
execute an addendum between the contractual parties in this respect, and having effects as of the
execution date of such updated appendix by the parties’ representatives. The new situation of the
mortgaged Shares, as detailed in the updated appendices (if the case) shall be registered with the
publicity registers (Electronic Archive, shareholders’ register, etc.), the Movable Mortgage thus
extending on any new Shares issued by the relevant company which will be held by the Guarantor
after the date of the Mortgage Agreement;
(c)
not to transfer the Shares without the Bank’s prior consent and to stipulate the acquirer’s
identification details; and
(d)
to allow or facilitate at any time to the Bank or any other entity or person appointed by the Bank the
verification of the shareholders’ register or any other similar register throughout the entire Security
Period;
(e)
to promptly inform the Bank on any claim or request of any person in relation to the Shares;
(f)
to promptly make any in-cash or in-kind contribution which must be made in relation o the Shares;
(g)
to promptly notify the Bank on any change concerning the holders of Shares and to promptly send to
the Bank a copy of the updated articles of association of the company whose Shares are mortgaged,
as submitted for registration with the relevant Trade Registry;
(h)
to promptly notify the Bank in writing on any lien in real property, any right of opposition registered
with the relevant Trade Registry or any enforcement measure initiated in relation to the Shares and
to make available to the Bank any necessary or useful documents to defend the Bank’s rights in
relation to the Shares; and
(i)
bearer securities are to be submitted to the Bank in trusteeship for keeping and record purposes,
according to Articles 795 to 799 of the Romanian Civil Code. For the avoidance of any doubt, the
Bank and the Guarantor represent that the submission of such assets is not an essential obligation of
the Mortgage Agreement and agree to the execution of a Movable Mortgage on the basis of Article
2387 et seq. of the Romanian Civil Code, and not a pledge agreement (according to Articles 2480 to
2494 of the Romanian Civil Code).
27